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W ASHINGTON , D C 20006 - 5468

TELEPHONE : 202 - 457 - 0160

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http://www.dickinsonwright.com

C HARLES SPIES

CSpies@dickinsonwright.com

202 - 466 - 5964

September 28, 2023 

Lisa J. Stevenson 

Acting General Counsel

Office of General Counsel

Federal Election Commission

1050 First Street NE 

Washington, D.C. 20463 

Re: Advisory Opinion Request

Dear Ms. Stevenson, 

On behalf of the Upshur County Republican Executive Committee (“Upshur County”), 

we seek an advisory opinion to confirm Upshur County’s independence from the West Virginia

Republican Party (“State Party”) for purposes of aggregate contribution limits. 11 CFR § 110.3. 

Upshur County is both practically and legally independent from the State party, and we 

respectfully request that the Commission expeditiously affirm this fact.

I. Legal Background

Under the Federal Election Campaign Act of 1971, as amended (“the Act”), political

committees “established or financed or maintained or controlled” by the same persons or group 

of persons are treated as a single political committee for the purposes of the contributions they 

make or receive.” 52 U.S.C. § 30125(e)(1)(A). 

While Congress specifically carved out exceptions giving separate political committee 

status to the national parties and a single committee established, financed, maintained, or 

controlled by a State committee, the Act is silent regarding the relationship of the county parties 

and state parties.

Despite the Act’s silence, legislative history illustrates that Congressional intent was to 

prevent persons or entities from evading the contribution limits by setting up multiple political 

committees.1 For example, the House Report states, “all political committees set up by a State 

1 House Report No. 94-917, 94th Cong., 2d Sess. 6, (1976)

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political party or by county or city parties would be treated as a single political committee for the 

purposes of [contribution limitations].”2

In an attempt to reconcile the Act and the apparent ambiguity of the legislative history,

the Commission promulgated rules creating a presumption of affiliation between the political 

committees of a state party and those of subordinate state party committees: 

All contributions made by the political committees established, 

financed, maintained, or controlled by a State party committee and 

by subordinate State party committees shall be presumed to be 

made by one political committee.

11 CFR § 110.3(b)(3). 

The regulations go on to state that the presumption shall not apply if: 

(i) The political committee of the party unit in question has not 

received funds from any other political committee established, 

financed, maintained, or controlled by any party unit; and 

(ii) The political committee of the party unit in question does not 

make its contributions in cooperation, consultation, or concert 

with, or at the request or suggestion of any other party unit or 

political committee established, financed, maintained, or controlled 

by another party unit. 

11 CFR § 110.3(b)(3). 

The Commission’s inclusion of the reputable presumption demonstrates an 

acknowledgment that state and county parties are naturally intertwined and necessarily have 

some form of a relationship as it relates to grassroots organizing and building collations of voters 

in a state. However, despite this inherent relationship, so long as each committee retains control 

of its own funds, a county party committee has the ability to be deemed independent as it relates 

to aggregate contribution limits. 

II. Question Presented

Is Upshur County independent from the State Party for purposes of aggregate contribution 

limits?

 

2 Id.

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III. Analysis 

Upshur County is the newly registered federal account of the Upshur Country Republican 

Executive Committee. 

Upshur County, like all county parties in West Virginia, is a creation of state statute. In 

practice, Upshur County operates independently from the State Party, especially in the context of 

decisions related to the use of federal account funds and contributions to federal candidates. The 

Start Party does not dictate or control how Upshur County makes policy decisions or uses its 

funds. Upshur County has complete control of any decisions related to Upshur County’s finances 

and contributions to federal candidates. Decisions on these matters are determined by a majority 

vote of the members at a formal meeting. Likewise, the State Party does not dictate or control the 

leadership of Upshur County. The members of Upshur County are elected, according to state 

statute, by the voters of the county. Based on these facts, Upshur County is both practically and 

legally independent from the State party for purposes of aggregate contribution limits. 

In previous Advisory Opinions, the Commission has evaluated similar county parties and 

found the presumption of affiliation did not apply. In AO 1978-9 (Republican State Central 

Committee of Iowa), the Commission concluded that the presumption of affiliation was 

overcome solely by the absence of the activities described in sections (i) and (ii) of 11 CFR § 

110.3(b)(3). In making this determination, the Commission relied on factors demonstrating the 

State party did not have substantial control of the decisions of the county party. 

A. Upshur has not received funds from a Committee established, financed, maintained, or 

controlled by any party unit 

Upshur County has not received funds from the West Virginia Republican Party or any 

other Committee established, financed, or maintained by the State Party. Upshur County does not 

participate in joint fundraising efforts with the State Party. Further, it is our understanding that 

Upshur County has not provided or arranged for funds to the West Virginia Republican Party 

and leadership of Upshur County has no plans to do so in the future. 

B. Upshur County Executive Committee does not make its contributions in cooperation, 

consultation or concert with, or at the request or suggestion of any other party unit or 

political committee established, financed, maintained, or controlled by another party 

units 

In prior Advisory Opinions, the Commission has evaluated similar county parties to 

determine if the presumption applied. AO 1978-9 (Republican State Central Committee of 

Iowa); see also AO 1999-4 (Republican Party of Minnesota). In evaluating section (ii) of 11 CFR 

§ 110.3(b)(3), the Commission has looked at factors such as: (1) the statutory authority creating 

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the county party in the state; (2) the control the State party has on county officials’ elections; (3) 

the control the State party has on the bylaws adopted by the county party; (4) the amount of 

control or influence the State party has on expenditures of the county party funds; and (5) if 

contributions from to the county party are made in cooperation, consultation with, or at the 

request of the State party. Id. 

Applying these factors to Upshur County, the presumption should not apply: (1) county 

parties in the State of West Virginia are created by state statute3; (2) the State Party does not 

have control of the Upshur County’s officer elections 4; (3) Upshur County adopts its own 

bylaws; (4) Upshur County has full control over its use of funds; and (5) contributions from 

Upshur County are not made in cooperation, consultation with, or at the request of the State 

Party. 

In sum, Upshur County independently controls the use of its funds and does not make its 

contributions in cooperation, consultation, or concert with, or at the request or suggestion of the 

State Party.

Additionally, the Commission has promulgated rules regarding Affiliated Committees

that list circumstantial factors the Commission may examine to determine whether the presence 

of any factor or factors is evidence of one committee or organization having been established, 

financed, maintained, or controlled by another committee or sponsoring organization. 11 CFR § 

100.5(g). To the extent the Commission believes these factors are applicable to the determination 

of county party affiliation, the application of these factors further demonstrates that Upshur 

County is not established, financed, maintained, or controlled by the West Virginia Republican 

Party. 

The 11 CFR § 100.5(g) circumstantial factors weigh in favor of a determination of nonaffiliation because:

(A) No organization owns a controlling interest in the voting stock or securities of

Upshur County; (B) The West Virginia Republican Party has nothing more than hypothetical 

authority or ability to direct or participate in the governance of Upshur County through 

provisions of constitutions, bylaws, contracts, or other rules, or through formal or informal 

practices or procedures; (C) The West Virginia Republican Party does not dictate leadership of 

Upshur County and does not control decision-making employees or members of Upshur County; 

(D) Any overlap in membership between the Upshur County and the West Virginia Republican

party is incidental and not an indicator of a formal or ongoing relationship; (E) Upshur Country

3 W. Va. Code, § 3-1-9. 

4 The State Party does have the ability to fill vacancies if the county is unable to fill the position or in the 

event of a tie vote. This is similar to the county party in AO 1978-9, where the Commission found the 

presumption did not exist, noting “the primary mechanism” for removing officers was through the action 

of the county committee itself. Advisory Opinion 1978-9 (Republican State Central Committee of Iowa).

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does not have a common or overlapping officers or employees with another sponsoring 

organization or committee which indicates a formal or ongoing relationship between the 

sponsoring organizations or committees; (F) There are no overlapping officers or employees of 

Upshur County and there are no former officers or employees of State Party or Upshur County; 

(G) Upshur County has not in recent history received funds from the West Virginia Republican 

Party or any other Committee established, financed, or maintained by the State Party; (H) The 

West Virginia Republican party does not causes or arranges for funds on an ongoing basis to be 

provided to Upshur County and the current leadership of Upshur County has no plans to 

provided or arranged for funds to the West Virginia Republican; (I) The West Virginia 

Republican Party or its agents had no role in the formation of Upshur County. Likewise, Upshur 

County had no role in the formation of the West Virginia Republican Party.; and (J) Upshur 

County does not have a similar pattern of contributions or contributors that indicate a formal or 

ongoing relationship with the State Party.

To clarify, there are provisions in the Bylaws of the Republican State Executive 

Committee of West Virginia (“State Party Bylaws”) that could be relevant to these facts. The 

State Party Bylaws should be read in the context of the natural relationship of a state and a 

county party relating to their grassroots and building coalitions of voters purposes. They should 

not be viewed as evidence the State Party has control of Upshur County’s financial decisions 

because, in practice, these provisions do not supersede the reality that Upshur County is entirely 

independent of the State Party regarding decision-making and control of Upshur County’s 

federal account. Further, despite any technical provisions and hypothetical scenarios, in reality, 

decisions related to Upshur County’s finances and policies are decided by a vote of the members 

of Upshur County at a formal meeting without cooperation, consultation, suggestion, or direction 

from the State Party.

For example, the State Party Bylaws state that the Executive Committee shall consist of 

“State Chairman, State Co-Chairman, State Secretary, State Treasurer, Republican National 

Committeeman, Republican National Committeewoman, Thirty-four (34) State Senatorial 

District Committeemen, Thirty-four (34) State Senatorial District Committeewomen, the County 

Chair of each County Republican Executive Committee, the President or highest-ranking officer 

of the West Virginia Federation of Republican Women, the Chairman or highest-ranking officer 

of the West Virginia Federation of Young Republicans, one At-Large member from each 

Congressional District corresponding to the number of Congressional Districts and Three (3) 

Members State-At-Large.”5

Upshur County has three members, including the Chairman of Upshur County, who are 

members of the Executive Committee. This is the extent of overlap between Upshur County and 

the State Party. These members’ limited participation on the Executive Committee does not 

indicate a significant level of control, or in practice, any level of control of the State Party. The 

 

5 Article II, Bylaws of Republican State Executive Committee of West Virginia

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Executive Committee has a massive membership of well over a hundred members. The three 

votes from the members of Upshur County are severely diluted by the rest of the membership of 

the Executive Committee. As a result, with only three votes, Upshur County does not have the 

ability to control the decisions of the State Party.

There are additional provisions of the West Virginia Republican Party Bylaws that give 

the State Party, in rare circumstances, the authority to appoint and remove county party officials, 

including removal of officers with a 2/3 vote of the Executive Committee and the ability to fill 

vacancies when their county party is unable to, or there is a tie vote.6 These are extraordinary and 

rare remedies. In practice, as a creature of statute, the primary mechanism that county executive 

board members are elected is through an election of Republican voters of Upshur County, in 

accordance with the provisions of West Virginia law.7

 The Officers are voted on by the members 

of Upshur County or, in the event of a vacancy, appointed by the Chairman of Upshur County.8

The existence of these provisions in the Start Party Bylaws does not indicate the State Party in 

practices determines who controls Upshur County. Likewise, based on Commission precedent, it 

is not dispositive in demonstrating that Upshur County and the State Party are not independent. 

In AO 1978-9 (Republican State Central Committee of Iowa), the Commission concluded the 

State party and county committee are separate political committees for purposes of aggregate 

contribution limits despite the fact that “under certain circumstances, the State Committee plays 

a role in the removal of a county committee Chairman or Co-Chairman for failure to fulfill the 

duties of the office, the primary mechanism for removal of county officers is through the action 

of the county committee itself.”9 As a result, the Commission should rely on the “primary 

mechanism” and how in practice leadership is elected for Upshur County, and not how they 

could hypothetically appointed or removed. 

The State Party Bylaws also provide that county parties “may adopt rules or bylaws 

which may not conflict with these Bylaws in matters relating to the election and removal of 

officers and members of the County Executive Committee.”10 This provision does not 

demonstrate that the State Party has any influence on decision making on how funds are raised 

and spent. It also does not demonstrate any significant level of control because the provision just 

provides a limited restriction on the framework for election and removal of officers and 

members.

The State Party Bylaws also provide the option that in “the interest of effective 

organization and party harmony,” the State Executive Committee and its Chairman ““have the 

ability to exert control regarding “any other matter of the business of any such committee which 

6 Article XI, XIII, Bylaws of Republican State Executive Committee of West Virginia

7

 W. Va. Code, § 3-1-9. 

8

 Upshur County Republican Executive Committee By-Laws

9

 AO 1978-9 (Republican State Central Committee of Iowa). 10 Article XV, Sec. 8, Bylaws of Republican State Executive Committee of West Virginia.

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in the opinion of the State Executive Committee or the State Chairman shall be of sufficient 

importance to the Republican party to require removal from local consideration and action by the 

State Executive Committee.”11 To implement this procedure, the State Party Bylaws list a 

lengthy multi-step process. This process is rarely utilized and does not in practice reflect a 

mechanism by which Upshur County makes decisions, especially decisions related to the use of 

Upshur County’s funds. Moreover, this provision should be viewed in the context of the state 

and county parties’ grassroots function. The existence of this provision does not diminish in any 

way the reality that Upshur County has full control of any decision related to Upshur County’s 

finances or policies. 

In further support of Upshur County’s independence, we understand that the current State 

Party leadership does not support Upshur County’s independence. This, of course, only further 

supports Upshur County’s contention that it is independent in practice, and is not established, 

maintained, financed, or controlled by the State Party.

IV. Conclusion 

We respectfully request that the Commission affirms Upshur County’s independence from 

the West Virginia Republican Party for purposes of aggregate contribution limits. 11 CFR § 

110.3. 

 Respectfully submitted,

Charlie Spies

Benjamin Mehr 

Counsel for Upshur County Republican 

Executive Committee

 

11 Article XIII, Bylaws of Republican State Executive Committee of West Virginia.

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